Human Rights Act 1998 and the European Convention on Human Rights - Remedies for breaches of human rights

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Overview

The Human Rights Act 1998 (HRA) and the European Convention on Human Rights (ECHR) are central to protecting human rights in the UK. For aspiring legal professionals, especially those preparing for the SQE1 FLK1 exam, it is important to thoroughly understand the remedies available for human rights violations. This article explores both domestic and international options for redress, examining the interaction between UK courts and the European Court of Human Rights (ECtHR). By reviewing key provisions, landmark cases, and the development of human rights law, we aim to equip students with the essential knowledge needed for the exam and their future legal careers.

Domestic Remedies Under the Human Rights Act 1998

The HRA incorporates the ECHR into UK domestic law, offering a strong framework for addressing human rights issues within the national legal system. Key mechanisms include:

Section 3 HRA: Interpretative Duty

Section 3 requires courts to interpret legislation in a way that aligns with Convention rights as far as possible. This serves as a powerful tool for ensuring human rights compliance without directly challenging parliamentary authority.

Key aspects:

  1. Courts must attempt to achieve compatible interpretation, even with a strained reading.
  2. Interpretation must stay within the scope of statutory language.
  3. If compatible interpretation is not possible, courts may issue a declaration of incompatibility under Section 4.

Example: In Ghaidan v Godin-Mendoza [2004] UKHL 30, the House of Lords interpreted the Rent Act 1977 to include same-sex partners as "spouses," ensuring compliance with Articles 8 and 14 ECHR.

Section 4 HRA: Declaration of Incompatibility

If a court cannot interpret legislation to match Convention rights, it may issue a declaration of incompatibility under Section 4 HRA.

Key points:

  1. Declarations do not alter the validity or operation of the incompatible provision.
  2. They alert Parliament to the need for possible legislative amendments.
  3. The government typically responds with remedial orders or new legislation.

Example: In R (Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32, the Supreme Court's declaration led to the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019, expanding civil partnerships to opposite-sex couples.

Section 6 HRA: Duty of Public Authorities

Section 6 makes it unlawful for public authorities to act against Convention rights unless required by primary legislation.

Key considerations:

  1. "Public authority" is broadly defined, including courts, tribunals, and private bodies performing public functions.
  2. Individuals can bring direct claims against public authorities for breaches.
  3. Remedies may include damages, injunctions, or declarations.

Example: YL v Birmingham City Council [2007] UKHL 27 prompted legislative change via the Health and Social Care Act 2008, extending HRA obligations to private providers of publicly arranged care services.

International Remedies Through the European Court of Human Rights

After domestic remedies are exhausted, individuals may seek redress at the European Court of Human Rights (ECtHR) in Strasbourg.

Admissibility Criteria

Before the ECtHR reviews a case on its merits, several criteria must be met:

  1. Exhaustion of domestic remedies (Article 35(1) ECHR)
  2. Application within six months of the final domestic decision (Article 35(1) ECHR)
  3. The applicant must be a victim of a violation (Article 34 ECHR)
  4. The complaint must not be clearly unfounded or an abuse of the right of application (Article 35(3) ECHR)

Just Satisfaction and Execution of Judgments

If the ECtHR identifies a violation, it may award "just satisfaction" under Article 41 ECHR, typically including:

  1. Pecuniary damages for financial losses
  2. Non-pecuniary damages for moral harm
  3. Costs and expenses incurred in bringing the case

The Committee of Ministers of the Council of Europe oversees the execution of judgments. While binding on the respondent state, the Court cannot directly overturn domestic decisions or legislation.

Example: Hirst v United Kingdom (No 2) [2005] ECHR 681 underscored the complexities of aligning ECtHR judgments with domestic implementation concerning prisoners' voting rights.

UK Courts and the ECtHR: Their Relationship

The interaction between UK courts and the ECtHR is dynamic and occasionally contentious.

Section 2 HRA: Considering Strasbourg Jurisprudence

UK courts must consider ECtHR judgments when interpreting Convention rights, prompting debates about the level of deference:

  1. The "mirror principle" suggests following consistent Strasbourg jurisprudence (R (Ullah) v Special Adjudicator [2004] UKHL 26).
  2. Later cases support a more flexible approach, allowing divergence when justified (R v Horncastle [2009] UKSC 14).

Judicial Dialogue

The relationship is marked by judicial dialogue:

  1. UK courts may choose not to follow Strasbourg if they find the ECtHR has misunderstood domestic law.
  2. The ECtHR may adjust its stance in response to national court reasoning.

Example: R v Abdurahman [2019] EWCA Crim 2239 showed dialogue on the right to legal assistance during police questioning, enriching the understanding of Article 6 ECHR in both jurisdictions.

Limitations and Challenges

Several limitations and challenges exist in the current framework:

  1. Parliamentary sovereignty: Parliament can theoretically legislate in conflict with Convention rights.
  2. National security concerns: Balancing individual rights and state interests can be complex.
  3. Margin of appreciation: The ECtHR allows states discretion in applying Convention rights, recognizing cultural and legal diversity.
  4. Political resistance: Proposals to repeal or modify the HRA create uncertainty about future human rights protection.

Example: Secretary of State for the Home Department v AF [2009] UKHL 28 highlighted the difficulty of balancing national security and fair trial rights regarding control orders.

Conclusion

The remedies available under the HRA 1998 and ECHR form a comprehensive system for addressing human rights breaches in the UK. For SQE1 FLK1 exam candidates, it's essential to fully understand these mechanisms. This includes understanding:

  1. The interpretative duty under Section 3 HRA
  2. The role of declarations of incompatibility
  3. The responsibilities of public authorities in upholding Convention rights
  4. The process and consequences of taking cases to the ECtHR
  5. The ongoing interaction between UK courts and Strasbourg jurisprudence
  6. The limitations and challenges in the human rights framework

Having a solid command of these concepts will prepare students to analyze complex human rights scenarios and understand the legal pathways for individuals seeking redress.